KAAZING DEVELOPER LICENSE AGREEMENT
Please read this Developer License Agreement (“Agreement”) carefully before installing or using the software that Developer wishes to download and use (the “Software”). This is a legal agreement between you (“Developer”) and Kaazing Corporation, a Delaware corporation (“Kaazing”). By downloading, installing, or using the Software, you are agreeing to be bound by the terms of this Agreement, including the license terms that specify the permitted use of the Software. If you are downloading, installing, or using the Software on behalf of a company or other entity, you represent and warrant that you have the authority to bind such entity to this Agreement. If you do not agree with the terms and conditions of this Agreement, do not install or use the Software.
Subject to the terms and conditions of this Agreement, Kaazing will provide Developer with one copy of its Kaazing Enterprise Gateway Developer Edition software product (the “Software”). Developer will provide, at its own expense, all hardware, equipment, and third party software necessary to use the Software.
This Agreement will begin on the day that the Software is provided to Developer and continue until terminated as set forth in Section 11 (the “Term”).
3. SOFTWARE LICENSE.
Subject to the terms and conditions of this Agreement, Kaazing hereby grants to Developer a limited, non-exclusive, non-transferable license, without right of sublicense, to internally use the Software, without modification, solely for the purpose of developing and prototyping Developer’s applications during the Term. Developer is prohibited from modifying, enhancing, or creating derivative works of the Software. This license will immediately terminate upon expiration or termination of this Agreement.
The Software is licensed, not sold, by Kaazing to Developer. Kaazing and its suppliers own and retain all right, title, and interest, including all intellectual property rights, in and to the Software, including any improvements, modifications, and enhancements to it. Except for those rights expressly granted in this Agreement, no other rights are granted, either express or implied, to Developer.
5. PROHIBITED USES; AUDIT.
(a) Developer may not: (i) remove or modify any software markings or any notice of Kaazing’s proprietary rights; (ii) redistribute or make the programs available in any manner to any third party; (iii) cause or permit reverse engineering of or decompile the software; (iv) disclose results of any program benchmark tests without Kaazing’s prior written consent; (v) use any Kaazing name, trademark, or logo without prior written consent; or (vi) use the Software for any commercial or production purposes, or for any purpose other than as permitted in this Agreement. If Developer wishes to use the Software for any commercial or production purposes, or for any purpose other than as permitted under this agreement, Developer must obtain a production release version of the Software by contacting Kaazing to obtain the appropriate license. Developer acknowledges that Kaazing may not produce a production release of the Software and that any development efforts undertaken by Developer are at its sole risk, cost, and expense.
(b) Developer acknowledges and agrees that Kaazing may audit Developer’s use of the Software to verify Developer’s compliance with this Agreement. This audit right includes, without limitation, the right to audit Developer’s use of the Licensed Software remotely, and the right to conduct or procure in-person audits of Developer’s facilities and systems.
6. ACKNOWLEDGMENT OF BETA AND OTHER PRE-PRODUCTION SOFTWARE.
Developer acknowledges that the Software may include “beta” or other pre-production software that has not been commercially released (“Beta Software”). Kaazing will indicate that Software is Beta Software by noting its pre-production or “beta” status at the time it is made available to Developer. Beta Software may not have been tested like other commercially released services or software that Developer may use, and may contain errors, including errors that may cause the Software or Developer’s hardware or systems to malfunction or to suffer a loss of data. If Developer does not wish to accept the risk of errors in any such Beta Software, Developer must not install or use such Beta Software. Furthermore, Kaazing is not obligated to correct errors, correct the effects of errors (e.g., fix Developer’s hardware or systems, or recover lost data), or provide any technical support related to use of Beta Software.
In order to protect the trade secrets and proprietary know-how contained in the Software, Developer will not decompile, disassemble, or reverse engineer the Software. Developer will maintain the confidentiality of and not disclose to any third party: (a) the terms of this Agreement, (b) any non-public information disclosed by Kaazing to Developer under this Agreement, and (c) any Software performance data or any other information obtained by using the Software.
8. WARRANTY DISCLAIMER.
THE SOFTWARE IS PROVIDED “AS IS” FOR LIMITED DEVELOPMENT PURPOSES, AND KAAZING DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. KAAZING EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY, AND FTNESS FOR A PARTICULAR PURPOSE.
9. LIMITATION OF LIABILITY.
THE TOTAL LIABILITY OF KAAZING ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $50. IN NO EVENT WILL KAAZING HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10. RESTRICTED USE.
Any use, duplication, or disclosure of the Software by the United States government is subject to the restrictions set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227- 7013 and the Commercial Computer Software – Restricted Rights clauses at FAR 52.227-19. Use, duplication, or disclosure of the Software by the government of any other country is subject to that country’s restrictions of similar applicable laws.
Developer may terminate this Agreement by destroying all copies of the Software. Kaazing may terminate this Agreement, and Developer’s right to use the Software, if Developer fails to comply with any of the terms of this Agreement or, if Developer is using Beta Software, when the applicable beta testing period expires. Upon termination, Developer must: (a) discontinue all use of the Software, (b) uninstall the Software from its systems, (c) destroy or return to Kaazing all copies of the Software and any other materials provided by Kaazing to Developer, and (d) promptly provide Kaazing with written confirmation (including via email) of Developer’s compliance with these provisions. Sections 4, 6, 7, 8, 9, 11, 12, and 13 will survive termination or expiration of this Agreement.
In the event that you provide any feedback to Kaazing regarding the Software, including, without limitation, identification of potential errors and improvements (“Feedback”), you hereby grant Kaazing the unrestricted right to use your Feedback, including using your Feedback to improve the Software and create other products and services.
This Agreement will be governed by the laws of the State of California, U.S.A without reference to conflict of law principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Developer will not assign this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of Kaazing. Developer will comply in all respects with all U.S. and foreign export and re-export laws and regulations applicable to the technology and documentation provided hereunder. This is the entire agreement between the parties relating to the Software. No waiver or modification of this Agreement will be valid unless contained in a writing signed by each party.